Improving Prosecutions for Archaeological Looting. Can we learn
from the United States approach?
The problemArchaeological sites in both the US and England have
been subjected to criminal damage, illegal excavation and removal
of objects (‘looting’). In the US only publicly owned land has
legal protection, but two thirds of sites on publicly owned land
have been looted (NPS 1991). In some areas of the US looting
(‘pothunting’) has a long history and is regarded as a socially
acceptable practice (Shelbourn, 2014a; Goddard, 2009) In England
the unlawful use of metal detectors on archaeological sites
(‘nighthawking’) is a growing problem which can be exacerbated by
widely publicised finds such as the ‘Staffordshire Hoard’ (Oxford
Archaeology 2009). Some sites, such as Corbridge Roman site, have
been subject to what has been called ‘quasi-industrial’
looting.
Looting damages the stratigraphy of the site and results in the
loss of information which could have been gained through proper
archaeological excavation. Even if a looted object is recovered by
the police it will have been removed from its context.
Learning from the US experience In England archaeologists have
little involvement in the criminal justice system other than
reporting the offence and consider that the police, prosecutors and
the courts have little understanding of the full impact of looting
on the historical heritage. The lack of understanding has resulted
in reluctance to process the site as a crime scene, to prosecute,
or to impose high sentences. (Shelbourn 2010, 2014b; 2014c).
In the US the Archaeological Resources Protection Act 1979
requires an assessment of the ‘damage to the archaeological value’
to be made when a prosecution is brought. This involves
professional costing of a full archaeological excavation of the
parts of the site affected by the looting.
• As a result there is much greater involvement of
archaeologists in the criminal justice process. Police and
prosecutors have greater understanding of the impact of looting and
archaeologists having greater understanding of the demands of the
forensic process and are less critical of law enforcement agencies
and prosecutors. (Shelbourn 2014c)
• Treatment of archaeological looting has improved by the
courses on the law, the collection of evidence and the impact of
looting run by the FBI, state police and some universities. These
courses are taught jointly by law enforcement, legal and
archaeological professionals.
• In the US Sentencing Guidelines have been developed which
impose significantly higher sentences for any offence involving
cultural property.
• Experience shows that prosecutions which are poorly managed
can generate hostile publicity, have little deterrent value and do
little to change the perception of heritage crime as a trivial
matter even where they result in conviction of the offender.
(Shelbourn 2014a; Shelbourn 2014b)
Improvements in English PracticeIt is unlikely that English law
will be changed to allow consideration of archaeological value to
be required in criminal proceedings. However procedural changes can
allow more involvement by archaeologists and better understanding
of the impact of looting.
• Recently introduced ‘heritage crime impact statements’ (used
at the sentencing stage) offer an opportunity for archeologists to
explain the full impact of the offence. Analysis of cases where
these have been used suggest that magistrates and judges find them
useful and have made them willing to impose penalties more in
keeping with the damage done by the offence (Shelbourn 2014c).
• English Heritage and the Magistrates Association are in the
process of developing sentencing guidance for heritage crime
generally. Shelbourn has been involved as part of the working
groups developing this guidance. It is hoped that this will lead to
greater understanding of the law, and the impact of heritage
crime.
PublicationsShelbourn (2014a), Operation ‘Cerberus Action’ and
the ‘Four Corners’ Prosecution, European Journal on Criminal Policy
and Research: Volume 20, Issue 4 (2014), 475-486
Shelbourn (2014b), A Tale of Two Prosecutions: Prosecuting
Heritage Crime in England and the United States, a Cautionary Tale,
[2014] Art Antiquity and Law, pp253-264
Shelbourn (2014c), ‘Improving the treatment of heritage crime in
criminal proceedings: towards a better understanding of the impact
of heritage offences, in Heritage Crime: Progress, Prospects and
Prevention, Grove L. and Thomas S. (eds) , Palgrave Macmillan
(2014)
Shelbourn (2011 unpublished) Survey of involvement of
archaeologists in the criminal justice process following looting or
damage of archaeological sites.
Shelbourn (2008) ‘Time crime’ - looting of archaeological
resources and the criminal law in England and the United States,
[2008] Criminal Law Review 3, 204-213
Shelbourn (2007) Protecting Archaeological Resources In The
United States: Some Lessons For Law And Practice In England? [2007]
3 Art Antiquity and Law, 259-278
Carolyn Shelbourn Email: [email protected]
School of Law, University of Sheffield
